[2018] KEELC 297 (KLR)
The court found that the disappearance of the court file from the registry was not disputed and that the reasons advanced for reconstruction were plausible. The application was unopposed, and the applicant demonstrated a legitimate interest as the registered owner of the suit property. The court exercised its...
Source-derived case information.
- Citation
- [2018] KEELC 297 (KLR)
- Parties
- Plaintiff: James Onyongo Obuki; Defendant: Omondi Ogutu; Applicant: Dr. Omondi Ogutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 920 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for File Reconstruction
- Outcome
- application allowed
- Judges
- LC Komingoi
- Legal Topics
- Court File Reconstruction, Missing Court Records, Joinder of Parties, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Onyongo Obuki
Plaintiff
Omondi Ogutu
Defendant
Dr. Omondi Ogutu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for File Reconstruction
Legal Issues
- 1 Whether the court file should be reconstructed based on the copies of pleadings and documents provided.
- 2 Whether the Deputy Registrar should ensure the safe keeping of the reconstructed file.
- 3 Whether the intended interested party should be enjoined as a party to the suit.
Ratio Decidendi
The court found that the disappearance of the court file from the registry was not disputed and that the reasons advanced for reconstruction were plausible. The application was unopposed, and the applicant demonstrated a legitimate interest as the registered owner of the suit property. The court exercised its inherent jurisdiction under the Civil Procedure Act to order the reconstruction of the file based on the copies of pleadings and documents provided, and directed the Deputy Registrar to ensure the safe keeping of the reconstructed file. The court also determined that costs would be in the cause, reflecting the procedural nature of the application and the absence of opposition.
Court Disposition
application allowed
Orders
- The court file shall be reconstructed.
- The reconstruction shall be based on the copies of pleadings and documents filed with the application.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO.920 OF 2016
JAMES ONYONGO OBUKI...............................PLAINTIFF/APPLICANT
=VERSUS=
OMONDI OGUTU..........................................DEFENDANT/RESPONDENT
=AND=
DR. OMONDI OGUTU..........................INTENDED INTERESTED PARTY
RULING
1. This is the Notice of Motion dated 25th April 2017 brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010.
2. It seeks order:-
(1) Spent
(2) That the court file be reconstructed.
(3) That the said reconstruction be in the basis of the copies of the pleadings and the documents filed herewith.
(4) That upon reconstruction the Deputy Registrar to ensure the safe keeping of the reconstructed file.
(5) That costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraph 1 to 7.
4. The application is supported by the affidavit of Ben Oluoch Olunya Advocate, sworn on the 25th April 2017. The court directed that the application be disposed of by way of written submissions.
5. It is the intended interested party’s submissions that the court file has since disappeared from the court registry and cannot be traced. Further that the intended interested party deserves to be enjoined to this suit as he is the registered owner of the suit property. They have relied on the case of Rajabali vs Kutubdin A. Khanbai & 2 Others Civil Suit No. 190 of 2012.
6. The application is not opposed. The plaintiff and the defendant who were duly served neglected to file any grounds of opposition or a replying affidavit.
7. I have given due consideration to the reasons given for reconstruction of the court file. I find that they are plausible.
8. Accordingly, I find merit in this application and grant the orders sought namely:-
(a) That the court file be reconstructed.
(b) That the said reconstruction be on the basis of the copies of the pleadings and the documents filed herewith.
(c) That upon reconstruction the Deputy Registrar to ensure the safe keeping of the reconstructed file.
(d) That the costs of this application be on the cause.
It is so ordered.
Dated, signed and delivered in Nairobi on this 11THday of DECEMBER 2018
.......................
L. KOMINGOI
JUDGE
In the presence of:-
……………..…...........Advocate for the Plaintiff
……………................Advocate for the Defendant
………........................Advocate for Intended Interested Party
....................................Court Assistant